The Criminal Law (Human Trafficking) (Amendment) Act 2013 was introduced to give effect to certain criminal law provisions of Directive 2011/36/EU on preventing and combatting trafficking in human beings and protecting its victims, which replaced Council Framework Decision 2002/629/JHA on combatting trafficking in human beings. The Criminal Law (Human Trafficking) Act 2008 (the principal Act) legislated for the 2002 Framework Decision. Directive 2011/36/EU states in Recital 7 that it adopts an integrated, holistic and human rights approach to the fight against trafficking in human beings and that more rigorous prevention, prosecution and protection of victims’ rights are major objectives of the Directive.
The 2013 Act introduces a number of changes in substantive criminal law and criminal procedure in relation to trafficking offences. The Act replaces and expands the original definition of exploitation in the 2008 Act. This now covers trafficking for the purposes of forced begging. It incorporates the definition of begging set out in the Criminal Justice (Public Order) Act 2011. The 2013 Act focusses on the phenomenon of begging as a form of forced labour. For this purpose it incorporates the definition of forced labour in the International Labour Organisation Convention No. 29 on Forced Labour (1930) into the definition of exploitation. This provides that “’forced labour’ means a work or service which is exacted from a person under the menace of any penalty and for which the person has not offered himself or herself voluntarily”, excluding work or service of certain types such as that of normal civic obligations.
Other exploitative activities are also covered such as trafficking for the purposes of criminal activities. Recital 11 of the Directive indicates that this may include exploitation of a person to commit pick-pocketing, shop-lifting, drug trafficking and similar activities. The Irish legislation sets out the concept of criminal activities in broad terms as including “an activity that constitutes an offence and that is engaged in for financial gain or that by implication is engaged in for financial gain”.
The Act provides that the offence of trafficking committed by public officials in the performance of their public duties is an aggravating factor to be taken into account for the purpose of sentencing. It also inserts the same provision into the Child Trafficking and Pornography Act 1998. The existing maximum penalty for conviction on indictment is life imprisonment.
The 2013 Act makes important procedural changes to the Criminal Evidence Act 1992 addressing the requirements of Article 15(4) of the Directive. That Act provides that evidence may be given by a witness (including a victim) in a human trafficking trial by live television link whether the person is inside or outside the State. It now also provides that a video-recording of any evidence or statement by a child (under 18 years) during an interview with a Garda in relation to an offence under section 3(1), (2) or (3) of the Child Trafficking and Pornography Act 1998 or sections 2, 4 or 7 of the Criminal Law (Human Trafficking) Act 2008 will be admissible as evidence at the trial of the offence, where direct oral evidence by the child of any fact stated would be admissible. This evidence is admissible on condition that the child is available at the trial for cross-examination. (The cross-examination may be conducted through live television link.) In order to protect the rights of the defence and to avoid a risk of unfairness to an accused the trial court has discretion not to admit such a video-recording or part of it if the court considers it is in the interests of justice not to admit it, having regard to all the circumstances.
Section 7 of the 2008 Act set out the basis on which Ireland claims jurisdiction to try human trafficking offences under sections 2 and 4 of this Act as well as under section 3 of the Child Trafficking and Pornography Act 1998. All acts which are committed in the territory of the State which constitute offences under these provisions may be prosecuted in the State (the territorial principle). The Act provides expressly that where these acts are committed outside the State by an Irish citizen or a person (or company or body corporate) ordinarily resident in Ireland they constitute an offence. Such acts committed outside the State against Irish citizens are also offences. The section also provides that where a person who is within the State conspires with or incites another person to commit such acts outside the State they are guilty of an offence. Further, where an Irish citizen or a person ordinarily resident in Ireland conspires with or incites, outside Ireland, another person to commit such acts outside the State they are guilty of an offence. Where a person conspires with or incites another person, whether or not they are inside or outside Ireland, to commit such acts against an Irish citizen outside the State, they are guilty of an offence. Additionally, where a person conspires with or incites, outside the State, an Irish national or person who is ordinarily resident in Ireland, to commit such acts outside the State, they are guilty of an offence. The section also criminalises attempts to commit any of these offences.
The 2013 Act has been criticised for not addressing other aspects of the Directive, in particular, to identify trafficking victims at an early stage and to provide them with other types of assistance, support and protection, taking into account the gender perspective. (Barnardos, Immigrant Council of Ireland, Migrant Rights Centre Ireland and Ruhama.) The lack of trafficking prosecutions in Ireland has also been highlighted. Among the assistance and support which must be provided are appropriate and safe accommodation, material assistance, medical treatment and psychological assistance, legal counselling and information. Serious concerns have been voiced as to whether the system of accommodating trafficking victims in hostels (under the system of “direct provision”) meets the requirements of appropriate and safe accommodation or the gender-specific perspective required by the Directive.
